Legal Review: D.C. Continues Controversial Pre-Trial Release System

Farral Haber is a criminal lawyer who defends clients in Washington, D.C. She is licensed to practice in D.C., Virginia, and Florida.

Throughout the United States, many local and state courts hold felony defendants in jail if they cannot make the bail payment before their trial–but not in Washington D.C.

In the District of Columbia, the vast majority of people who are arrested and charged with an offense are released after being held overnight and trusted to return for their next court date.

According to the Washington Post, in the United States, when arrestees cannot pay their bail and must stay in jail until trial, it costs taxpayers about $75 a day to hold them. In contrast, it costs taxpayers about $7 a day to monitor a person who is released and awaiting trial.

Since 1991, D.C. courts have operated this way. Those who are considered dangerous to public safety are held, but the vast majority of people are released before their trials and are not arrested again in that time period. A small percentage of people are re-arrested and in only rare circumstances is it for a violent crime.

The District is part of the movement in putting an end to the bail-bond business that has been the status quo in the country, despite Attorney General Robert F. Kennedy’s 1964 condemnation of a system where wealth dictates whether a person is released pending trial.

Class action lawsuits have been filed in several states and the New Jersey and Colorado legislatures have also put forth efforts to reduce the use of bonds as a form of release from jail.

There are recent high profile cases that have drawn attention to bail-setting practices in the criminal-justice system. For example, bail was set at $500,000 for a Baltimore protester after the death of Freddie Gray. In a similar vein, a teenager was held at Riker’s Island on robbery charges for three years before the charges were dropped. Two years after his release, he took his own life.

D.C. Superior Court Judge Truman Morrison is a supporter of releasing those charged before trial without setting financial barriers as a condition of release.

Proponents of removing financial barriers as a condition of release argue it is unfair to base pre-trial release on the ability to pay, instead of the dangerousness of the crime and other factors.

In a situation where two people are each charged with marijuana possession and both have a money bond set as a condition of release, it is unfair if one is able to pay bail and await his or her trial at home, while the other is unable to pay and therefore, must sit in prison until trial.

Not only is it unfair, but it may be unconstitutional. The Justice Department has claimed that assigning bail to defendants without any investigation into the person’s financial background is a violation of the 14th Amendment.

Skeptics of transitioning to a risk-based system argue that it may be difficult to replicate D.C.’s system since the federal government funds the pre-trial agency who oversees monitoring defendants who are released pending trial.

In D.C. pre-trial agency employees conduct interviews with people charged with a crime before they see the judge with questions about personal and family life, employment and substance use. The court will look at the interviews and weigh several factors to determine if the defendant is a threat to public safety.

This system operates around the clock so the court has the necessary information to determine whether or not the person can be released. If a person is going to be released, the court will also determine if release conditions are necessary, such as submitting to drug tests, weekly check-ins, staying away from a person or place, GPS monitoring, or house arrest.

There are cases in which defendants released in D.C. have turned around and committed violent crimes. For example, a man on pretrial release for a gun charge was under GPS monitoring when he fatally shot a person after leaving the GPS at home, attached to his prosthetic leg. Another recent example is of a man on pretrial release for an assault on a police officer charge, who then fatally stabbed a person on the Metro.

The head of pretrial services in the District, Cliff Keenan, accepts responsibility when the system fails, but asserts that the system works the vast majority of the time in detaining dangerous people.

Overall, the courts in Washington D.C. may be paving the way for the future of the U.S. criminal-justice system, which many believe is in dire need of an overhaul to stop punishing the poor with a bail system that relies on financial ability.

Borderstan contributor and law firm sponsor Price Benowitz LLP. The views and opinions expressed in the column are those of the author — our contributor and law firm sponsor Price Benowitz LLP — and do not necessarily reflect the views of Borderstan.